ADVOCATES:Daniel F. Davis - on behalf of the RespondentJohn R. Gustafson - on behalf of the Petitioner

Facts of the case

On October 29, 1983, 10-year-old David was abducted from a church carnival. The abductor molested and sodomized the boy, then returned him to the carnival an hour and a half later. David’s mother took him to the Kino Hospital, where a doctor examined him and used a sexual assault kit to collect evidence. The police collected the kit and the boy’s clothes. The evidence from the kit was refrigerated, but the clothing was not. Nine days after the attack, David positively identified Larry Youngblood as the abductor from a photo lineup. The next day, a police criminologist examined the sexual assault kit and determined that sexual contact had occurred, but he did not test the clothing at that time. Youngblood was indicted on charges of sexual assault, kidnapping, and child molestation. The state moved to compel him to provide samples to compare with those from the sexual assault kit, but the trial court denied the motion because there was not enough sample material in the kit to make a valid comparison. In January 1985, the police criminologist tested the boy’s clothing for the first time and received inconclusive data.

At trial, police witnesses testified as to what the tests might have shown had they been conducted closer to the time the evidence was gathered. The court instructed the jury to consider the facts “against the state’s interests” if they found the state had lost or destroyed evidence by conducting the tests later. The jury found the defendant guilty. The Arizona Court of Appeals reversed and held that, when identity is an issue at trial, the loss or destruction of evidence that could remove the defendant from suspicion is a denial of due process. The Supreme Court of Arizona denied the petition for review.

Question

Does the state’s failure to preserve potentially useful evidence constitute a denial of due process?